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Wednesday, October 9, 2013

Criminal conspiracy = Non - examination of witness whether fatal ? - GULAM SARBAR Vs. STATE OF BIHAR (NOW JHARKHAND)- published in judis.nic.in/supremecourt/filename=40871

 Criminal conspiracy = Non - examination of witness whether fatal ?

 Criminal Conspiracy = 
The essential ingredients of  Criminal  Conspiracy  are 
 (i)  an agreement between two or more persons; 
(ii) agreement must  relate  to
      doing or causing to be done either 
(a) an illegal act; or 
(b)  an  act
      which is not illegal in itself but is done by illegal means. 
What  is,
      therefore, necessary is to show  meeting  of  minds  of  two  or  more
      persons for doing or causing to be done an illegal act or  an  act  by
      illegal means. 
Mere knowledge or discussion or generation of  a  crime
      in the mind of  the  accused,  is  not  sufficient  to  constitute  an
      offence.

            The offence takes place  with  the  meeting  of  minds  even  if
      nothing further is  done.  
It  is  an  offence  independent  of  other
      offences and punishable separately. 
Thus, the prosecution is  required
      to establish the offence by applying the same legal  principles  which
      are  otherwise  applicable  for  the  purpose  of   proving   criminal
      misconduct on the part of an accused. 
Criminal conspiracy is generally
      hatched in secrecy thus direct evidence  is  difficult  to  obtain  or
      access. 
The offence can be proved by adducing circumstantial  evidence
      or by necessary implication. Meeting  of  minds  to  form  a  criminal
      conspiracy has to be proved by adducing substantive evidence in  cases
      where circumstantial evidence is incomplete or vague. 
The gist of  the
      offence of conspiracy then lies, not in doing the  act,  or  effecting
      the purpose for which the conspiracy is formed, nor in  attempting  to
      do them between the parties.  Agreement  is  essential.  
The  High  Court
      rightly observed that normally the perpetrator of crime in a  case  of
      conspiracy does not take part in the execution rather such conspirator
      hires some criminal directly or indirectly to execute the evil  design
      planned by him. 
There  may  be  circumstances  where  the  conspirator
      remains vigilant to conceal his identity and would  not  disclose  the
      actual motive behind the conspiracy.
      19.   Thus, we  do  not  see  any  reason  for  interfering  that  the
      prosecution  witnesses  have  deposed   falsely   to   implicate   the
      appellants.
Non- examination of witness -  question must be placed before I.O. =
 however, no  such  question  was
      put to him as to why those witnesses were not examined. In the absence
      of putting such an  issue  to  Jagdish  Prasad  (PW.8),  Investigating
      Officer, the appellants cannot seek any benefit of  such  omission  or
      error by the prosecution in conducting of trial.
In the matter of appreciation of evidence of  witnesses,  it  is
      not the number of witnesses but quality of  their  evidence  which  is
      important, as there is no requirement under the Law of  Evidence  that
      any particular number of witnesses is to be examined to prove/disprove
      a fact. It is a time- honoured principle that evidence must be weighed
      and not counted. The test is whether the evidence has a ring of truth,
      is cogent, credible and trustworthy or otherwise. The legal system has
      laid emphasis on value provided  by  each  witness,  rather  than  the
      multiplicity  or  plurality  of  witnesses.  
It  is  quality  and  not
      quantity, which determines  the  adequacy  of  evidence  as  has  been
      provided by Section 134 of the Evidence Act. Even  in  Probate  cases,
      where the law requires the  examination  of  at  least  one  attesting
      witness, it has been held that production of more witnesses  does  not
      carry any weight. Thus, conviction can even be based on the  testimony
      of a sole  eye  witness,  if  the  same  inspires  confidence. 

                                                       REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                     CRIMINAL APPEAL NO.  1316  of 2012




     Gulam Sarbar
     …Appellant


                                   Versus


     State of Bihar (Now Jharkhand)
       …Respondent


                                    With


                     CRIMINAL APPEAL NO.  1967  of 2012






                               J U D G M E N T


      Dr. B.S. CHAUHAN, J.


      1.    These appeals have been preferred against the impugned  judgment
      and order dated 22.3.2012 passed by the High  Court  of  Jharkhand  at
      Ranchi in Criminal Appeals (DB) Nos. 273 of 1998 (R) and 262  of  1998
      (R) affirming the judgment and order of conviction and sentence  dated
      26.8.1998 and 31.8.1998 respectively  passed  by  the  3rd  Additional
      Sessions Judge, Dhanbad in Sessions Trial No. 112 of  1997,  by  which
      and whereunder, the appellants in both these appeals  stood  convicted
      alongwith others, namely, Binod Kumar,  Asgar  Mian  @  Asgar  Ansari,
      Paiki Ramm @ Poki Ramm and Mantu Das under Sections 302 read with  120-
      B of Indian Penal Code, 1860 (hereinafter referred to  as  the  `IPC’)
      and sentenced to undergo RI for life.


      2.    Facts and circumstances giving rise to these appeals are that:
      A.    As per the case of  the  prosecution,  Dr.  Gopal  Prasad  Sinha
      (PW.7), informant/complainant was going  alongwith  Sant  Kumar  Sinha
      (deceased), to Rajganj, Dhanbad on his motorcycle at about  8.00  P.M.
      on 6.9.1996.  When they reached near Sant Nirankari Chowk, they saw  a
      scooter and a motorcycle parked at  the  side  of  the  road  and  six
      persons including the appellants were standing in the close  proximity
      thereof, and they signalled the complainant to stop.
The  complainant
      stopped his motorcycle and enquired as to why they were waiting.   But
      within no time, Yakub Ansari and Dhiren Mahto  -  appellant  took  out
      their pistols from their waist and pointed towards them and asked  why
      Sant  Kumar  Sinha  (deceased)  was  disturbing  the  working  of  the
      institute run by  Binod  Kumar.  
They  threatened  Sant  Kumar  Sinha
      (deceased) to remain  away  from  the  institute.  
Sant  Kumar  Sinha
      (deceased) asked the accused persons how they were related to  running
      the affairs of the institute, which led to an exchange  of  hot  words
      between the deceased and the accused persons.  
Accused  Asgar  started
      inflicting blows by means of  a  knife  and  told  his  companions  to
      complete the task for which they had come.   
Immediately, Yakub opened
      fire at point blank range from his revolver on the left  side  of  the
      neck of  Sant  Kumar  Sinha  (deceased)  due  to  which  the  deceased
      collapsed and died immediately. 
The informant/complainant being scared
      ran away from the place of occurrence, leaving his motorcycle  at  the
      spot.  
He met a police party to whom he narrated the incident.  On the
      basis of the Fardbeyan of the informant, a case under Sections 302/120-
      B/379 IPC and Section 27 of the Arms Act, 1959  (hereinafter  referred
      to as  the  ‘Arms  Act’)  against  the  accused,  including  both  the
      appellants, was registered  vide  FIR  No.  175  of  1996.  Thus,  the
      investigation ensued accordingly.
      B.    After the conclusion of the investigation, a  charge  sheet  was
      filed against all the accused, showing Yakub @ Ayub as  an  absconder.
      Accordingly, the trial vide S.T. No. 112 of 1997  commenced.  The  co-
      accused Yakub @ Ayub was apprehended later and  was  tried  separately
      vide S.T. No. 405 of 1998.
      C.    In order to prove  its  case,  the  prosecution  examined  eight
      witnesses including Mithilesh Kumar Sinha (PW.1) – real brother of the
      deceased, Arvind Kumar (PW.2) – cousin of deceased, Dr. Dhiraj (PW.6),
      who conducted the post-mortem  examination,  Dr.  Gopal  Prasad  Sinha
      (PW.7), informant/complainant and  brother  of  deceased  and  Jagdish
      Prasad (PW.8), the Investigating Officer.
      D.    The defence  also  examined  three  witnesses.   Gurpreet  Singh
      Mittal (DW.1), was examined only to prove that there was no  light  in
      Sant Nirankari Bhawan at the relevant point of time,  and  further  to
      show that Nirankari Chowk was at a distance of about 200-250 feet away
      from Nirankari Bhawan.  Vijay  Kumar  Singh  (DW.2)  and  Suresh  Dass
      (DW.3) were merely formal witnesses.
      E.   As per the case of the prosecution, Gulam Sarbar,  appellant  ran
      away on Yakub’s motorcycle after the incident. He was  chased  by  the
      police and arrested at a short distance from the place  of  occurrence
      after he jumped a police barricade.
      F.    Similarly, Dhiren Mahto left the  place  of  occurrence  on  LML
      Vespa Scooter alongwith Asgar Mian. So far as Dhiren Mahto (appellant)
      is concerned, he was arrested after a few days on  secret  information
      of his presence at  Naya  Bazar.   At  the  time  of  raid,  the  said
      appellant tried to run away on the scooter after seeing the police but
      was chased and  captured near Bartad.
      G.     In  his  statement  under  Section  313  of  Code  of  Criminal
      Procedure, 1973 (hereinafter referred to as `Cr.P.C.’),  Gulam  Sarbar
      simply denied all allegations against him and even denied his presence
      at the place  of  occurrence.  
 Dhirendra  Chandra  Mahto  denied  his
      involvement by any means in the murder of  Sant Kumar Sinha (deceased)
      stating that he had nothing to do with the main accused  Binod  Kumar.
      He was a small contractor, however, he did not deny  his  presence  at
      the place of occurrence nor that he had run away on the scooter taking
      away Asgar Ansari as pillion rider.
      H.    After considering the material on record, the trial  court  vide
      its judgment and order dated 31.8.1998 convicted both  the  appellants
      under Sections 302 and 120-B IPC alongwith other accused and sentenced
      as referred to hereinabove but acquitted Dhirendra  Chandra  Mahto  of
      the charge under Section 27 of the Arms Act.
      I.    Aggrieved, they preferred appeals alongwith  others  before  the
      High Court which stood dismissed by the impugned  judgment  and  order
      dated 22.3.2012.
            Hence, these appeals.


      3.    Shri Amarendra  Sharan,  learned  senior  counsel  appearing  on
      behalf of Gulam Sarbar and Shri Ashok K.  Srivastava,  learned  senior
      counsel appearing on behalf of Dhiren Mahto, have submitted that
there
      is no material on record to prove the existence  of  a  conspiracy  to
      kill Sant  Kumar  Sinha  (deceased);  none  of  these  appellants  was
      involved in the affairs of the institute  for  which  there  was  some
      dispute between Sant Kumar Sinha (deceased) and Binod Kumar (accused).
     
In fact, both of them had been running a institute  jointly  and  one
      Shipra Sen Choudhery was working as a clerk in the institute with whom
      Binod Kumar (accused) developed illicit  relationship  which  was  not
      liked by Sant Kumar Sinha (deceased),  who  tried  to  persuade  Binod
      Kumar (accused) not to continue  that  relationship  but  he  was  not
      willing to give up the same.
Sant Kumar Sinha (deceased) also informed
      the wife of Binod Kumar (accused) about this  relationship  and  there
      was a quarrel between Shipra Sen Choudhery and Binod Kumar’s wife over
      the same.  Earlier, Binod Kumar had opened a new  institute  and  made
      Shipra Sen Choudhery its Director.
However, none of  these  appellants
      were involved in the entire episode.  Even the arrest of Gulam  Sarbar
      from a place near to the place of incident is doubtful.  Had  it  been
      so, the FIR which was registered after the  arrest  of  Gulam  Sarbar,
      would contain such facts.  Even the general diary did not mention what
      the distance was between the police station and the place  from  where
      Gulam Sarbar, appellant, was arrested. The investigation had not  been
      conducted properly and fairly.
The witnesses, particularly, Mithilesh
      Kumar Sinha (PW.1) and Arvind Kumar  (PW.2)  not  being  eye-witnesses
      could not be relied upon. No independent witness was examined  by  the
      prosecution to prove the arrest of any of the appellants nor to  prove
      alleged recoveries of the motor cycle and the  scooter  in  the  case.
      The prosecution case is based on speculation and conjecture thus,  the
      appeals deserve to be allowed and the judgment and order of the courts
      below are liable to be set aside.


      4.    Per contra,  Shri Ratan Kumar  Choudhuri  and  Shri  Krishnanand
      Pandeya, learned counsel appearing on behalf  of  the  State,  opposed
      both these appeals contending that there are  concurrent  findings  of
      facts and that both accused persons were well  acquainted  with  Binod
      Kumar, the main accused, and  had  been  seen  by  the  witnesses  and
      particularly by Dr. Gopal Prasad Sinha (PW.7) in the  institute  owned
      by Binod Kumar, accused, prior to the incident.
Their presence on the
      spot and the manner in  which  they  had  parked  their  vehicles  and
      stopped the motorcycle on which  the  complainant  and  deceased  were
      travelling is enough to prove the conspiracy.
There is no improvement
      or embellishment in the case of the prosecution against any individual
      accused.  The evidence has rightly  been  appreciated  by  the  courts
      below and ocular evidence is corroborated  by  the  medical  evidence.
      Thus, the appeals lack merit and are liable to be dismissed.



      5.    The essential ingredients of  Criminal  Conspiracy  are
 (i)  an agreement between two or more persons; 
(ii) agreement must  relate  to
      doing or causing to be done either 
(a) an illegal act; or 
(b)  an  act
      which is not illegal in itself but is done by illegal means. 
What  is,
      therefore, necessary is to show  meeting  of  minds  of  two  or  more
      persons for doing or causing to be done an illegal act or  an  act  by
      illegal means. 
Mere knowledge or discussion or generation of  a  crime
      in the mind of  the  accused,  is  not  sufficient  to  constitute  an
      offence.

            The offence takes place  with  the  meeting  of  minds  even  if
      nothing further is  done.  
It  is  an  offence  independent  of  other
      offences and punishable separately. 
Thus, the prosecution is  required
      to establish the offence by applying the same legal  principles  which
      are  otherwise  applicable  for  the  purpose  of   proving   criminal
      misconduct on the part of an accused. 
Criminal conspiracy is generally
      hatched in secrecy thus direct evidence  is  difficult  to  obtain  or
      access. 
The offence can be proved by adducing circumstantial  evidence
      or by necessary implication. Meeting  of  minds  to  form  a  criminal
      conspiracy has to be proved by adducing substantive evidence in  cases
      where circumstantial evidence is incomplete or vague. 
The gist of  the
      offence of conspiracy then lies, not in doing the  act,  or  effecting
      the purpose for which the conspiracy is formed, nor in  attempting  to
      do them between the parties.  Agreement  is  essential.  
(Vide:  Kehar
      Singh & Ors. v. State (Delhi Admn.), AIR 1988 SC 1883; State  (NCT  of
      Delhi) v. Navjot Sandhu @ Afsan Guru, AIR  2005  SC  3820;  Mir  Nagvi
      Askari v. CBI, AIR 2010 SC 528;  Baldev  Singh  v.  State  of  Punjab,
      (2009) 6 SCC 564; State of M.P. v. Sheetla Sahai & Ors., (2009) 8  SCC
      617; R. Venkatkrishnan v. CBI, AIR 2010 SC 1812; and  S.Arul  Raja  v.
      State of T.N., (2010) 8 SCC 233).

      6.    In Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh & Anr. v.  CBI,
      (2008) 15 SCC 49, it was  held  that  in  order  to  come  under  this
      provision it is not necessary for the accused  to  know  the  detailed
      stages of conspiracy; mere knowledge of main object/  purpose  of  the
      conspiracy would suffice for this Section.

            Similarly, in Vikram Singh & Ors. v. State of Punjab,  AIR  2010
      SC 1007, this Court dealt with a case where the accused had  purchased
      fortwin injection and chloroform. Thus, it was  held  that  since  the
      purchase of these materials was an initial step towards commission  of
      offence,  the presence of co-accused Sonia, though not referred to  by
      the witnesses at the time of actual kidnapping would  not  imply  that
      she was not privy to conspiracy and conviction of  the  accused  under
      Section 120-B IPC was upheld.


      7.    The evidence on record and particularly the  deposition  of  Dr.
      Gopal Prasad Sinha (PW.7) clearly  depicts  the  conspiracy  from  the
      manner in which the appellants and other accused were present  on  the
      crossing and stopped the complainant and  the  deceased.  
Admittedly,
      there was rivalry and ill-will between Binod Kumar (accused) and  Sant
      Kumar Sinha (deceased)   as  they  had  separated  their  business  of
      running of educational institution and Sant Kumar Sinha did  not  like
      the illicit relationship between Binod Kumar (accused) and Shipra  Sen
      Choudhery, Clerk.
Sant Kumar Sinha (deceased) tried to persuade Binod
      Kumar (accused) to desist from the said illicit relationship and  Sant
      Kumar Sinha (deceased) also revealed this fact to the  wife  of  Binod
      Kumar (accused) and there was not only a verbal fight between the wife
      of Binod Kumar and Shipra Sen Choudhery but  also  a  scuffle  between
      them on this issue and, subsequently, the wife of  Binod  Kumar  began
      living separately.
Therefore, relations between Binod Kumar  (accused)
      and Sant Kumar Sinha (deceased) had definitely been strained.


      8.    Both these appellants and other  accused  were  acquainted  with
      Binod Kumar (accused) as well as Sant Kumar Sinha (deceased) and  were
      also known to Dr. Gopal Prasad  Sinha  (PW.7).   They  had  been  seen
      earlier in the institute with Binod Kumar (accused).


      9.    The evidence of Dr. Gopal Prasad Sinha (PW.7) that Gulam  Sarbar
      had run away with the  accused Yakub @ Ayub on black coloured Kawasaki
      motorcycle and had been arrested within a close vicinity of the  place
      of incident, though Yakub successfully escaped,  inspires  confidence.
     
The names of the appellants and other accused had  been  mentioned  in
      the FIR. In such a fact-situation, not mentioning  that  Gulam  Sarbar
      had been arrested in the FIR is of no  significance.  
The  LML  Vespa
      Scooter BR17-B-4455 used in the crime was seized in  the  presence  of
      independent witnesses, namely, Sunil Mandal and Santosh  Vikral.   The
      seizure memo was prepared on which both the said panch  witnesses  put
      their signatures. The same was marked as Exhibit 6-1 and was proved by
      Jagdish Prasad (PW.8),  Investigating  Officer.
 In  respect  of  the
      arrest of Gulam Sarbar, Jagdish Prasad (PW.8) has clearly deposed that
      he was inspecting small  vehicles  in  front  of  the  police  station
      alongwith Constable Badre Alam at about 20.05 hrs., when  he  saw  two
      persons on one black coloured Kawasaki motorcycle crossing the barrier
      at a very high speed. 
They were given signal to stop but they did  not
      stop. On the contrary, they pushed the barrier and fled away on  which
      Jagdish Prasad (PW.8) and Constable Badre  Alam  chased  them.   Gulam
      Sarbar jumped from the motorcycle near Bartand Pulia and tried to flee
      but was controlled and captured by them  and  upon  interrogation,  he
      revealed that Yakub was the person who had run away on the motorcycle.
       Jagdish Prasad (PW.8) I.O.  received  secret  information   that  the
      motorcycle used in the crime had been hidden in  the  house  of  Yakub
      (accused).  
A search was conducted of his house  in  presence  of  two
      independent witnesses, namely, Muslim Ansari and Bhagirath  Razak  and
      the same was recovered. A seizure memo was prepared and was signed  by
      the said two witnesses. The said seizure memo was marked as Exhibit  -
      6 and proved by Jagdish Prasad (PW.8), Investigating Officer.


      10.    Jagdish  Prasad  (PW.8)  deposed  that   he   received   secret
      information about the whereabouts of the appellant Dhiren Mahto and he
      conducted raid at Naya Bazar  alongwith  other  police  officials  and
      Constable Badre Alam. Though he tried to escape,  he  was  apprehended
      and arrested and LML Vespa Scooter BR  17-B-4455  was  recovered.
The
      arrest memo and recovery memo of  the  scooter  was  prepared  in  the
      presence of independent witnesses namely,  Sunil  Mandal  and  Santosh
      Vikral and the seizure memo was signed by the said witnesses. The same
      was marked as Exhibit 6-1 and was proved by him.
            It was at a later stage that the other  accused  were  arrested.




      11.   Learned senior counsel appearing on  behalf  of  the  appellants
      have submitted that neither the witness of arrest memo  of  either  of
      the appellants nor the panch witness of the recovery  of  scooter  and
      motor cycle used in the crime has been examined  by  the  prosecution.
      Even the police Constable Badre Alam who  accompanied  Jagdish  Prasad
      (PW.8) I.O. at the time  of  arrest  of  Gulam  Sarbar  has  not  been
      examined. Therefore, the case of arrest of the appellants as  well  as
      the recovery of the vehicles is not worth  acceptance  and  the  whole
      case of the prosecution becomes doubtful.


      12.   We had been taken  through  the  entire  deposition  of  Jagdish
      Prasad (PW.8), Investigating Officer, however, no  such  question  was
      put to him as to why those witnesses were not examined. In the absence
      of putting such an  issue  to  Jagdish  Prasad  (PW.8),  Investigating
      Officer, the appellants cannot seek any benefit of  such  omission  or
      error by the prosecution in conducting of trial.


      13.   This Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v.  Bhagwantbuva
      (Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 dealt with the issue raised
      herein observing as under:
             “31. Furthermore, there cannot be any dispute with  respect  to
           the settled legal proposition, that if a party wishes  to  raise
           any doubt as regards the  correctness  of  the  statement  of  a
           witness, the said  witness  must  be  given  an  opportunity  to
           explain his statement by drawing his attention to that  part  of
           it, which has been objected to by  the  other  party,  as  being
           untrue.  Without  this,  it  is  not  possible  to  impeach  his
           credibility. Such a  law  has  been  advanced  in  view  of  the
           statutory provisions enshrined in Section 138  of  the  Evidence
           Act, 1872, which enable the opposite party  to  cross-examine  a
           witness as regards  information  tendered  in  evidence  by  him
           during his initial examination in chief, and the scope  of  this
           provision stands enlarged by Section 146 of  the  Evidence  Act,
           which permits a witness to be questioned, inter-alia,  in  order
           to test his veracity. Thereafter, the unchallenged part  of  his
           evidence is to be  relied  upon,  for  the  reason  that  it  is
           impossible for the witness to  explain  or  elaborate  upon  any
           doubts as regards the same, in the absence of questions  put  to
           him with respect to the circumstances which  indicate  that  the
           version of events provided by him, is not fit  to  be  believed,
           and the witness himself, is unworthy of credit. Thus, if a party
           intends  to  impeach  a  witness,  he  must   provide   adequate
           opportunity to the witness in the witness box, to  give  a  full
           and proper explanation. The same is  essential  to  ensure  fair
           play and fairness in dealing with witnesses.”


      (See also: Ravinder Kumar Sharma v. State of Assam & Ors., AIR 1999 SC
      3571; Ghasita Sahu v. State of  Madhya  Pradesh,  AIR  2008  SC  1425;
      Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181; and  Gian Chand
      & Ors. v. State of Haryana, JT 2013 (10) SC 515).


      14.   In the matter of appreciation of evidence of  witnesses,  it  is
      not the number of witnesses but quality of  their  evidence  which  is
      important, as there is no requirement under the Law of  Evidence  that
      any particular number of witnesses is to be examined to prove/disprove
      a fact. It is a time- honoured principle that evidence must be weighed
      and not counted. The test is whether the evidence has a ring of truth,
      is cogent, credible and trustworthy or otherwise. The legal system has
      laid emphasis on value provided  by  each  witness,  rather  than  the
      multiplicity  or  plurality  of  witnesses.  It  is  quality  and  not
      quantity, which determines  the  adequacy  of  evidence  as  has  been
      provided by Section 134 of the Evidence Act. Even  in  Probate  cases,
      where the law requires the  examination  of  at  least  one  attesting
      witness, it has been held that production of more witnesses  does  not
      carry any weight. Thus, conviction can even be based on the  testimony
      of a sole  eye  witness,  if  the  same  inspires  confidence.  (Vide:
      Vadivelu Thevar & Anr. v. State of Madras; AIR 1957 SC  614;  Kunju  @
      Balachandran v. State of Tamil Nadu, AIR 2008  SC  1381;  Bipin  Kumar
      Mondal v. State of West Bengal AIR 2010 SC  3638;  Mahesh  &  Anr.  v.
      State of Madhya Pradesh (2011) 9 SCC 626; Prithipal Singh  &  Ors.  v.
      State of Punjab & Anr., (2012) 1 SCC 10; and Kishan Chand v. State  of
      Haryana JT 2013( 1) SC 222).


      15.   If the prosecution had not examined the Panchnama witnesses  and
      witnesses to the arrest memos of the appellants, the appellants  could
      have examined them in their defence.




      16.   The prosecution has successfully established the involvement  of
      the appellants in the crime and the manner in which the crime has been
      committed  establishes  the  conspiracy.  The  appellants   in   their
      statement under Section 313 Cr.P.C. did not furnish  any  satisfactory
      explanation of the circumstances under which they were present at  the
      place of occurrence.  More so, the manner  in  which  they  fled  away
      after the commission of the crime clearly indicates their  involvement
      in the offence to conduct a conspiracy. Gopal Prasad Sinha (PW.7)  has
      no enmity with either of the appellants and there was  no  reason  for
      him to involve them falsely in such a heinous crime.


      17.   Thus, the trial court after appreciating the  evidence  recorded
      the findings of fact regarding the presence of the appellants  at  the
      place of occurrence as well as the presence of  Dr. Gopal Prasad Sinha
      (PW.7). The said witness was well acquainted with all the accused  and
      particularly the appellants.  He had seen them alongwith  Binod  Kumar
      (accused) gathering all the accused at the place of occurrence.   Some
      of the accused persons particularly Gulam Sarbar engaged and  used  to
      sit together in a gumti and have tea there.  A conspiracy was  hatched
      by Binod Kumar (accused) as Sant Kumar Sinha  (deceased)  had  created
      problems in his family life as well as in  his  business  because  the
      deceased did not like the illicit  relationship  between  Binod  Kumar
      (accused) and Shipra Sen Choudhery.  The manner in which the crime was
      committed it seems that it  was  a  pre-planned  murder.    There  was
      sufficient light in the nearby building Nirankari Bhavan at  the  time
      of commission of the offence.  There was  no  material  contradiction,
      embellishment or improvement in the deposition  of  Dr.  Gopal  Prasad
      Sinha (PW.7).  The defence though examined three witnesses but none of
      them was relevant for their purpose.
            The trial court acquitted Dhiren  Mahto  of  the  charges  under
      Section 27 of the Arms Act giving cogent reasons.


      18.   The  High  Court  reappreciated  the  evidence  and  upheld  the
      findings of facts recorded by  the  trial  court  observing  that  the
      ocular evidence was in consonance and in conformity with  the  medical
      evidence and it was a clear cut case of conspiracy.  
The  High  Court
      rightly observed that normally the perpetrator of crime in a  case  of
      conspiracy does not take part in the execution rather such conspirator
      hires some criminal directly or indirectly to execute the evil  design
      planned by him. 
There  may  be  circumstances  where  the  conspirator
      remains vigilant to conceal his identity and would  not  disclose  the
      actual motive behind the conspiracy.
      19.   Thus, we  do  not  see  any  reason  for  interfering  that  the
      prosecution  witnesses  have  deposed   falsely   to   implicate   the
      appellants.


      20.   Thus, in view of the above, the facts and circumstances of these
      appeals do not warrant interference.  The appeals lack merit  and  are
      dismissed accordingly.


                                       ….………………..........J.            (DR.
                                       B.S. CHAUHAN)





      …...................................J.
                                                              (S.A. BOBDE)
      NEW DELHI;
      October 7, 2013







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